Arvind and Another (In Jail) vs State of U.P.

D.C. Srivastava, J.—Learned Counsel for the Petitioners and learned A.G.A. have been heard.

The petition is being finally disposed of at the admission stage.

Brief facts, essential for disposal of this petition, are that the Petitioners are lodged in Tihar Central Jail, New Delhi, in connection with a case under Excise Act, on the basis of report No. 204 of 1996, dated 3.7.1996, registered at P. S. Vivek Vihar, Shahadra, New Delhi. In case Crime No. 103 of 1996, under Sections 304 and 302, I.P.C. of P. S. Ramala, District Meerut the Petitioners are also wanted. They applied for bail before the C.J.M., Meerut. The C.J.M., Meerut had sent warrant B vide copy Annexure No. 4. A communication was received from the Superintendent, Central Jail, Tihar, New Delhi, contained in Annexure No. 5 that the Petitioners were wanted in the Court of Sri S.K. Agarwal, Metropolitan Magistrate, Delhi and the next date fixed for their production was 19.7.1996. Only this much information was given and the Petitioners were not transferred to District Jail, Meerut. Another communication, contained in Annexure No. 6, was received from the Superintendent, Central Jail, Tihar, intimating that the Petitioners can be transferred to Meerut Jail till pendency of the case in Delhi Courts. Some alternatives were also suggested in this communication as to how the Petitioners can be sent to Meerut Jail and can be retransmitted to Tihar Central Jail, Delhi. It seems that no concrete steps were taken to follow the alternatives suggested in this communication.

Bail application of the Petitioners was rejected by the C.J.M., Meerut with the observations that because the Petitioners were not in physical custody before this Court, the bail application cannot be entertained and decided. It is this order which is under challenge in this petition.

A controversy was raised before the C.J.M., Meerut whether B warrant was actually issued to the Superintendent, Tihar Central Jail, New Delhi or not but this controversy was decided in affirmative by the C.J.M., Meerut and the communication from the Central Jail, Tihar, New Delhi also confirms that B warrant was issued to the Superintendent of that Jail.

Now the question is whether in these circumstances when the Petitioners are willing to submit to the jurisdiction of the Meerut Court and also to comply with the orders of the Meerut Courts, should it be treated that Petitioners are in custody for the purpose of Meerut Courts, in the special circumstances of the case, when for some technical reason or ineffective approach to the concerned authorities, matter for transferring the Petitioners to Meerut Jail has not been materialized.

This Court in Chaudhary Jitendra Nath and Anr. v. State of U.P., 1991 ACC 497 following a verdict of the Supreme Court in Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote and Others, held that the Sessions Judge, Mirzapur has jurisdiction to entertain and decide the bail application of the Petitioners who were detained in connection with another case in Naini Central Jail, Allahabad. The facts of the case before me are on strong footing than the case of Chaudhary Jitendra Nath (supra). Aforesaid judgment does not indicate that any attempt was made by the II Additional Sessions Judge, Mirzapur to send B warrant to Central Jail, Naini for transferring the accused to District Jail, Mirzapur whereas in the case before me it is concluded that B warrant was prepared and sent to the Superintendent, Central Jail, Tihar. For one reason or the other and for difficulties which can hardly be appreciated, actual transfer of the Petitioners to Meerut Jail, even for short-time, for the purpose of disposal of their bail application, has not been materialized. Placed in such situation, the Petitioners have no alternative but to plead that they are willing to submit to the jurisdiction of Meerut Courts and comply with the directions issued by such Courts while deciding their bail application.

Word ''custody'' was explained in Chaudhary Jitendra Nath case (supra) and also by the Supreme Court in Niranjan Singh case (supra). The Supreme Court observed that meaning of word ''custody'' in the context of Section 439 is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court. (Emphasis supplied by me). It was further observed by the Supreme Court that an accused can be in custody not merely when the police arrests him produces him before a Magistrate and gets a remand to judicial or other custody, he can be stated to be in judicial custody when he surrenders before the court and submits to its jurisdiction (Emphasis supplied by me).

Keeping in view peculiar facts and circumstances of the case and the observations of the Supreme Court in Niranjan Singh case (supra) the expression "submission to the jurisdiction and orders of the court" has to be given a further liberal interpretation and it has to be stretched to the extent that if the accused is ready and willing to surrender to the jurisdiction of another Court and comply with the orders of the said Court, he should be deemed to be in custody because he has no say in the matter whether he should be transferred from Tihar Central Jail, New Delhi to District Jail, Meerut. If such liberal interpretation is not given to the verdict of the Supreme Court, it would amount to do grave injustice to the accused who inspite of his willingness is unable to appear before another Court where his bail application is pending.

For the reasons given above, I am of the view that in the peculiar facts and circumstances of the case, the Petitioners will be deemed to be in judicial custody of the C.J.M., Meerut and he should have no difficulty in hearing and deciding the bail application of the Petitioners.

The petition, for the aforesaid reasons, succeeds. The impugned order dated 5.10.1996, contained in Annexure No. 1 of this petition, is quashed. The C.J.M., Meerut is directed to dispose of pending bail application of the Petitioners in accordance with law.